Quotes From Oral Arguments

The coblogs, particularly @drewmtips and @rdbrewer4, are quoting the transcripts of today's hearing in emails. Seems worth a post.

[DrewM, commenting, then quoting:] Alito... really destroys the whole "we have to do this because of free riders"/non participation is participation argument. The fact is, they are creating free, well subsidized, riders....

JUSTICE ALITO: But isn't that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016.

Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

rd, from page 103:

Page 103:

JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique.

I don't like this next part: He seems to concede that here, the market really is unique (and hence would be a pretext to permit the "regulation," if he so chose). If I follow him correctly.

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That's my concern in the case.

rd, from pages 4-6:

USTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.

In this case, the -- what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And --

JUSTICE SCALIA: Any self purchasing? Anything I -- you know if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.

GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement -- those who for religious reasons don't participate, those who are incarcerated, Indian tribes -- virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.

CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To -- in some extent, we all participate in it.

So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

GENERAL VERRILLI: No, Mr. Chief Justice. [We] think that's different. It's -- We -- I don't think we think of that as a market. This is a market.

rd rounds up some more quotes by Kennedy, since he was (at least before today) considered a swing vote. He seems highly skeptical of the Government's assertion it can do almost anything as long as it's arguably For the Children (TM) and "affects" interstate commerce.

PP 4-5: Can you create commerce in order to regulate it?

PP 11-12: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do younot have a heavy burden of justification to show authorization under the Constitution?

P 16: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

PP 16-17: But why not? If Congress -- if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.

P 24: I'm not sure which way it cuts. If the Congress has alternate means, let's assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power. On the other hand, it means that since the Court can do it anyway -- Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes.

P 30: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

To be honest, Kennedy seems a lot more equivocal than liberal commentators imagined. A lot of his statements (like the one from page 24, above) are very on the fence.

The goal of the government in this sort of case is to get a limited blessing for exactly what you've done, with some kind of suggested rule suggesting what you did here was different from other hypothetical cases. You don't want, or need, some Major Sweeping Opinion blessing all hypothetical exercises of government power. You want to offer the justices a justification for saying "This one thing is okay, other things probably aren't." So in that way you give the justice a fig leaf, a fig leaf to convince himself he's not just blessing any assertion of government power willy-nilly.

My fear here, a little heightened by Kennedy's remarks, is that he's amenable to just such a pitch.

You have to understand justices-- they want to make small waves. They want to rule on the smallest grounds possible, creating the least new law going forward.

They will not go (generally) for something that they perceive as "fundamentally altering the relationship between citizen and government."

Nor do they easily knock down a law passed by Congress, signed by a president.

So if you offer them a middle ground, or something disguised to look like a middle ground, they just might go for it. Pitch them the idea that this is unique and limited to this one single area of activity and hence will not provide precedent or justification for further expansions of power, but will remain limited to just this one little thing.

Pitch them that, and a Weather Vane might spin your way.

We're not asking you to eat the whole of the Forbidden Fruit. Of course you'd be aghast at such a suggestion. We're just saying-- take a little nibble. Just a small little nibble, and then, cross our hearts, we'll put the Forbidden Fruit away and won't touch it ever again.